Citation Nr: 1757556 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-14 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to July 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has tinnitus, which, as an organic disease of the nervous system, is a chronic disease listed in 38 C.F.R. § 3.309(a). 2. The Veteran has experienced ringing in his ears related to tinnitus since his discharge from service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as tinnitus, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In the present case, the Board finds that the Veteran has tinnitus, which, as an organic disease of the nervous system, is a chronic disease listed in 38 C.F.R. § 3.309(a). As a lay person, the Veteran is competent to report symptoms that he perceived through his own senses, such as tinnitus. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A July 2012 VA examination report indicates the Veteran reported having recurrent tinnitus. As an organic disease of the nervous system, tinnitus is expressly recognized as a chronic disease under 38 C.F.R. § 3.309(a). At the May 2017 hearing, the Veteran testified that he first experienced ringing in his ears during service after a mine explosion. Additionally, a February 1971 service treatment record indicates the Veteran reported symptoms of ringing in his left ear. Therefore, the evidence establishes an in-service event. The record also contains credible evidence of continuity of symptomatology related to tinnitus since the Veteran's discharge from service. The July 2012 VA examination report indicates the Veteran reported his tinnitus onset was about three years ago and that it had gotten more intense lately. At the May 2017 hearing, the Veteran testified that he had continuous symptoms of tinnitus since service. He clarified that he told the VA examiner that his tinnitus had become more intense in the past few years. In a May 2017 statement, the Veteran stated that his tinnitus began after an exposure to an exposure to an explosion in service while he was performing a mine sweep. He stated that he told the VA examiner that his tinnitus had worsened in the last few years. Although the July 2012 VA examination report indicates the Veteran reported his symptoms began three years prior to the examination, the Veteran's testimony and May 2017 statement indicate he reported his symptoms had worsened during that timeframe. There is no other evidence contradicting his assertion that he has had continuous symptoms since service. The Board finds the Veteran's statements at the May 2017 hearing and his written submission in May 2017 regarding the onset of his tinnitus symptoms to be credible, and consistent with the circumstances of his service. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection tinnitus, pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. REMAND The Board finds that the Veteran's claim for service connection for bilateral hearing loss must be remanded for a new VA opinion. The Veteran has asserted that he has had symptoms of hearing loss since service. In a February 2013 opinion, a VA examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by or a result of in-service noise exposure. The VA examiner stated that the Veteran had an audiometric evaluation at the time of his separation physical that indicated his hearing was well within normal limits at that time, and current studies did not support the concept of delayed onset of hearing loss due to noise exposure. However, at the May 2017 hearing, the Veteran testified that he has been experiencing symptoms of decreased hearing since service. In a May 2017 statement, the Veteran stated that his difficulty hearing began following an in-service explosion. The record reflects the Veteran served in Vietnam from January to November 1970 and had a military occupational specialty of Armor Crewman. Therefore, his statements regarding the in-service event are consistent with the circumstances of his service and, for purposes of this remand, the Board finds them to be credible. February 1971 service treatment records also indicate he was treated for impacted wax in the left ear canal during service, with symptoms of pain and ringing in the left ear. As the February 2013 opinion did not address the in-service left ear symptoms or the Veteran's lay statements regarding the onset of his hearing loss, the Board finds the claim must be remanded for a new VA opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After receiving all additional records, forward the Veteran's electronic claims file to a VA clinician of appropriate audiological expertise. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss disability was incurred in, or is otherwise related to active duty service, to include exposure to hazardous noise. The examiner must address the Veteran's competent report of noise exposure, his statements regarding the onset of his hearing loss symptoms during service after an explosion, and service treatment records noting left ear pain and ringing. For purposes of providing this opinion, the examiner should also consider the Veteran's statements to be credible. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. If the VA clinician determines that an examination is necessary to provide an opinion, the Veteran should be scheduled for a VA examination. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § 5109B. ______________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs